RSA No. 2898 of 2016. Case: Sheel Jain Vs Raj Dulari and Ors.. High Court of Punjab (India)
| Case Number | RSA No. 2898 of 2016 |
| Counsel | For Appellant: Gopal Sharma, Advocate |
| Judges | Amol Rattan Singh, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order I Rule 10(2); Order VII Rule 11; Order XLI Rule 27; Section 107; Haryana Municipal Act, 1973 - Sections 181, 181(1), 181(2), 279; Punjab Municipal Act, 1911 - Sections 172, 172(1) |
| Judgement Date | March 30, 2017 |
| Court | High Court of Punjab (India) |
Judgment:
Amol Rattan Singh, J.
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This is an appeal by the plaintiff who filed a suit in the Court of the learned Civil Judge (Junior Division), Rewari, seeking permanent injunction and "in the alternative for mandatory injunction", against the defendant, i.e. the respondent herein.
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The facts, as taken from the judgments of the learned Courts below, are that the appellant-plaintiff contended that he is the owner in possession of House No. 5522-23, located in Mohalla Jain Puri, Tehsil & District Rewari, 'on the basis of a decree dated 19.12.2008 passed in his favour. The detailed description of the location of the house was further given in the plaint.
It was averred that between that house and the house of one Pawan Kumar, falling on the east side, there exists an over bridge for several years but the defendant, who had purchased the house of Pawan Kumar in November 2012, intended to demolish the over bridge, i.e. the property in dispute (hereinafter to be referred to as the suit property).
The plaintiff contended that if the suit property was demolished then the eastern part of his house, on which the bridge was constructed, shown in red colour in the site plan annexed with the plaint, would also be demolished, thereby causing an irreparable loss which could not be monetarily compensated.
Consequently, the suit was instituted on 04.12.2012, seeking that the defendant be restrained from demolishing the suit property and if during the pendency of the suit, she actually demolished it, then a decree of mandatory injunction be issued to restore it.
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Upon notice issued, the respondent-defendant appeared and filed her written statement, to the effect that the over bridge, i.e. the suit property, existed on a public street, with no site plan sanctioned for its construction by the Municipal Committee, Rewari and therefore, it actually amounted to encroachment by the plaintiff.
Further, it was stated that the plaintiff was not the owner of House No. 5522-23 and that the decree dated 19.12.2008 was illegal and void and that the defendant being a bonafide purchaser, for valuable consideration, of the property shown in green colour in the plaintiffs' site plan, had every right to raise construction over her property and therefore, even if the illegal encroachment was removed, there was no question of any loss to the plaintiff as the over bridge was in any case constructed in violation of the Haryana Municipal Act, 1973 and the bye-laws framed thereunder.
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From the aforesaid pleadings of the parties, the following issues were framed by the learned Civil Judge:-
"1. Whether the plaintiff is entitled to the relief of permanent as well as mandatory injunction as prayed for? OPP
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Whether the suit of plaintiff is not maintainable in the present form? OPD
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Whether the plaintiff has no locus standi to file the present suit? OPD
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Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD
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Whether the plaintiff has not come with clean hands before the Court? OPD
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Whether the plaintiff has no cause of action to file the present suit? OPD
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Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD
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Relief."
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The plaintiff examined one Mahabir Yadav, Sunil Kumar and himself as PWs1 to 3, whereas the defendant examined Shri Amar Singh Yadav, Advocate, one Om Parkash, Chatarbhuj, Pawan and Ashok Kumar as DWs1 to 5.
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Upon considering the evidence, including various documents and photographs exhibited by the two contesting parties, the learned trial Court came to the conclusion that "admittedly the plaintiffs' construction rested upon the suit property", (actually the suit property rested upon the plaintiffs' construction), which though not owned by the plaintiff, was also not owned by the defendant.
Noticing that though DW5, Ashok, had stated in his affidavit that even if the suit property was removed it would not result in any loss to the plaintiffs' construction, however, as no 'expert' had been examined by the defendant to that effect, whereas PW2 Sunil Kumar was an 'expert' examined by the plaintiff, who had testified that if the suit property was demolished it would result in demolition of the plaintiffs' construction, it was held that...
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